Federal Court Distinguishes Immigration Cases Where Aliens Voted in Elections

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 23, 2012 – Two immigrant aliens who married U.S. citizens and had pending petitions to become lawful permanent residents voted in federal elections. That’s a problem. One just lost his federal appeals fight to remain in the country. The other still has a shot to stay.

An immigration judge and the Board of Immigration Appeals (Board) found that Anthony Kimani, a Kenyan citizen, and Elizabeth Keathley, a citizen of the Philippines, violated 18 U.S.C. § 611 when they voted in U.S. federal elections before attaining permanent resident status.

Section 611(a) declares it unlawful for any alien to vote for a U.S. President, Vice President, or member of Congress, among other public offices. An individual who violates this provision is not eligible for permanent resident status as the spouse of a U.S. citizen. Based on the violations, the immigration judge in both cases ordered deportation. Both parties appealed.

In Kimani v. Holder, Nos. 11-1497 & 11-2955 (August 22, 2012), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit upheld the board’s removal order, and denied a motion to reopen the decision on the grounds of ineffective assistance of counsel.

But in Keathley v. Holder, No. 11-1594 (August 22, 2012), another three-judge panel distinguished Kimani and approved Keathley’s petition for judicial review. Keathley is now free to assert the defense of so-called “entrapment by estoppel” to avoid deportation.

The Keathley Case

Keathley married a U.S. citizen in the Philippines in 2003, and obtained a U.S. visa in 2004. While awaiting her husband’s request for her permanent resident status, Keathley applied for an Illinois driver’s license, presenting her Philippine passport, she contends.

A state official processing her license asked her if she wanted to vote, and she said yes. The facts are unclear as to whether the state official, or Keathley, checked a box that indicates U.S. citizenship on the driver’s license and voter registration form. But it was checked.

In any case, the state sent her a voter registration card, and she voted in a 2006 federal election, while her permanent resident status was still pending.

Keathley now asserts that the state official knew, or should have known, she was not a U.S. citizen, and the state’s decision to send the voter registration card led her to believe she could vote. Keathley invokes “entrapment by estoppel” to argue that she did not violate section 611.

Both the immigration judge and the Board concluded that entrapment by estoppel, a criminal law doctrine, does not apply in immigration cases. The appeals panel disagreed.

Noting that entrapment by estoppel is more appropriately named “defense of official authorization,” the appeals panel explained that the defense is not limited to criminal proceedings, and Keathley can use it to show she did not violate section 611.

“Whether she has a good defense depends in part on facts that remain to be ascertained,” wrote Judge Easterbrook, noting that motor vehicle departments can register voters. “A person who behaves with scrupulous honesty only to be misled by a state official should be as welcome in the country in 2012 as she was when she entered in 2004.”

The Kimani Case

Kimani entered the U.S. in 2000 on a visitor’s visa. He did not leave when it expired, and he did not seek another visa. Kimani married a U.S. citizen three years after the visa expired, and his wife applied for U.S. permanent resident status on his behalf.

But investigating officials found that he voted in the 2004 federal election.

Like Keathley, Kimani applied for a driver’s license. He checked the box indicating he was a U.S. citizen on the license and voter registration form. Unlike Keathley’s argument, Kimani did not represent himself as an alien to any state official in the motor vehicle department.

Instead, he argued that he did not “knowingly” vote in violation of section 611, and that provision requires a violator to have specific intent. The appeals panel disagreed.

“A statute that does not mention any mental-state (mens rea) is a general-intent law,” wrote Judge Easterbrook, noting that general-intent laws only require an act, in this case voting.

The appeals panel also rejected Kimani’s “entrapment by estoppel” argument. “He does not contend that any official told him that it is lawful for aliens to claim to be citizens, or than any public official directed him to register to vote,” Judge Easterbrook wrote.

Unlike Keathley, who may have represented herself as an alien, Kimani represented himself as a citizen, the panel noted. The panel also rejected Kimani’s argument that his lawyer was ineffective in making the section 611 arguments on his behalf.

“[K]imani’s problem stems from his own decision to register, to claim citizenship, and to vote,” Judge Easterbrook wrote. “That can’t be blamed on his immigration lawyer.”